By John P. Blumberg

Until recently, dispute resolution was synonymous with courtrooms, litigation, judges and juries. Now, individuals and businesses, including health care providers, are recognizing the advantages of private mediation to resolve disputes. Alternative Dispute Resolution refers to the disposition of conflicts without court proceedings. It can take a number of forms, of which arbitration and mediation are the most popular. Arbitration, in its binding form, is a process by which a neutral fact finder makes a final decision, in the same manner as a judge. Mediation does not involve the imposition of a judgment or decision by a judge or arbitrator. It does involve the resolution of a conflict by a process in which the parties themselves participate and decide how the conflict is to be resolved.

The use of the public judicial system requires the ability to finance litigation, to accept the risk of loss, to bear the diversion of capital and management resources, and the willingness to accept delay. Mediation provides confidentiality, a speedy conclusion of the conflict, and the avoidance of a bitter ongoing dispute. Mediation can be arranged in a matter of weeks, sometimes days, and concluded in days or hours. Judicial resolution can take years.

Mediation is a private and informal way to discuss disputed issues and reach agreements. A mediator is a trained neutral person who guides the disputants in reaching an agreement that both can accept. Mediators cannot impose any decision on the parties. They do not dwell on the fault of either party. Instead, the mediator guides each party in gaining a satisfactory result. It is called a win-win result. Unlike court proceedings or arbitration, the parties retain complete control of the decision. If it appears that no agreement will be reached, the parties can end the process and proceed with litigation or arbitration. However, statistics show that about 90% of all disputes submitted to mediation with an experienced mediator are resolved to the satisfaction of the parties.

HOW DOES MEDIATION WORK?

The mediation process typically includes three phases: introduction, problem solving, and closure. In the introductory phase, the mediator develops an atmosphere of reasonableness by establishing ground rules for participation approved by the parties. During this phase, the parties explain their respective perceptions of the disputed issues. In the second phase, the issues are explored, and the discussions are tightly focused by the mediator. Proposals are communicated and solutions are considered. Often, new solutions are proposed. By "shuttle diplomacy" during private caucuses, the mediator can help each party to understand the interests of the other party and how particular issues are evaluated. The final phase of the successful mediation is the closure, where the parties confirm their agreement and draft their settlement documents.

A classic story illustrating the benefits of mediation involves two sisters arguing over an orange. Each one wants it, and there is only one orange. Their mother intercedes. She takes a knife and cuts the orange, giving one half to each girl. Problem solved? An arbitrator may think so, but not a mediator. If the mother had been a mediator, she would have explored her daughters' interests, rather than their positions. She would have discovered that one girl wanted the orange to squeeze for juice, and the other wanted to grate the rind to use in flavoring a cake. Each could have had 100% of what she wanted, instead of just half. As will be explained, physicians can derive significant benefits from mediation.

WHAT TYPES OF CASES CAN BE MEDIATED?

Nearly every type of human conflict is susceptible to agreement. Mediation simply facilitates the process. However, there are some cases which are particularly appropriate for non-judicial resolution. Among these are disputes involving health care providers, business partners, family members, neighbors, and people involved in business or personal relationships. Even in situations where relationships have ended, mediation is appropriate.

Health care issues fit perfectly into mediation. Patient Issues, including malpractice, coverage and third party liability, are common, but are not the only types of disputes that end up in court. Disaffiliation Issues are frequent sources of unrest between professionals and institutions. These disputes involve competency disaffiliations and business-based disaffiliations that include contract, economic or business considerations. Employment Issues have found their way into lawyers' offices in cases involving sexual harassment, discrimination, and wrongful termination. Managed Care Issues include conflicts among patients, health plan payors and physicians over medical services not delivered or, if delivered, not reimbursed by the payor. These disputes often involve payors, subscribers and providers in varying configurations. Intra-System Economic Issues relate to the negotiation of new agreements, or to the performance of existing agreements. These situations contemplate a going-forward relationship, such as mergers and acquisitions, joint ventures, and other professional combinations. Conflicts are common in new relationships. Ethical Issues include conflicts involving life support, religious dissent, and holistic versus chemical treatment.

For those involved in lawsuits, the pursuit of justice means "I'm supposed to win." Each side must follow rules. Each side gets the chance to present its best case. Each side argues that it is right and the other side is wrong. Then, somebody else makes the decision.

And who is the decision maker? If it is a jury, who are the people who comprise it? A social critic once said that a jury is 12 people who decide which side has the best lawyer. In a non-jury trial, who is the judge whose job it is to make a decision? Decisions can be based on highly subjective factors which reflect the background and philosophy of the judge: pro-life/pro-choice, liberal/moderate/conservative, democrat/republican, male/female, pro-business/pro-consumer. A judge whose previous career as a lawyer was in the criminal prosecutor's office may have to preside over a complex business dispute involving issues he or she hasn't considered since law school.

If litigation is the first resort, "justice" is likely to be an elusive target. The only certainty about proceeding with a trial is the uncertainty of the outcome. Litigation should be the last resort after the parties have the opportunity to resolve the case themselves through mediation.

As law students, future attorneys learn from casebooks which focus solely on cases that have gone through the litigation and trial process. Until recently, no law school instruction was given in mediation. Accordingly, the unfamiliar process of mediation is often viewed with suspicion. For example, if they view litigation as a game of strength and power, some lawyers may reject mediation, believing that it will be interpreted as a sign of weakness.

Lawsuits. That is where the action is. Drama, confrontation, tactical advantage, surprise witnesses. It is great adventure for lawyers. It has the excitement of the hunt, the tales of woe and intrigue, the thrill of victory and the agony of defeat. Unfortunately, for the party to the lawsuit, it is never fun, seldom exciting, and always harrowing, like a bad dream that his or her car is speeding downhill and the brakes don't work.

It is in this context that the party to the dispute must exercise some control over the process; otherwise, the process controls the party. The client can insist that the attorney explore methods of resolving the dispute outside of the court system. For example, in the court-supervised settlement system, the parties wait outside while their lawyers discuss settlement with a judge out of their presence. In mediation, the parties themselves have the opportunity to discuss possible resolutions, sometimes with lawyers present and sometimes with lawyers absent or waiting outside.

Proposing mediation to the other party is not a sign of weakness. The fact is that most lawsuits don't go to trial -- they are settled. If the case is going to be settled anyway, why not avoid the expense? If you propose mediation, emphasize that the procedure is voluntary, non-binding and confidential; the mediator must be acceptable to all parties; time limits may be established; the ground rules must be acceptable to all parties; and a party may withdraw at any time. The chances of success are high.

If the persons being invited to mediate are not familiar with the process, a party may request a mediator to contact the other party to arrange for the mediation. Usually, there is no extra charge for such service.

THE COST OF MEDIATION VERSUS LITIGATION

Although fees may vary, the cost of retaining a mediator is relatively inexpensive, particularly when weighed against the costs of litigation. The mediator may charge between $250 and $400 per hour. Mediation may take only a few hours, or a day or two. The parties may apportion costs equally, or as they agree. One party can agree to pay all or a substantial percentage of the costs, but ideally, all parties should share in the cost. That is an important investment in the process itself. The cost of mediation is, on average, less than 5% of the cost of litigation. In litigation, there is ostensibly one winner and one loser. As a practical matter, the "winner" in litigation is frequently a loser, if the total monetary cost and the ill will generated by the litigation are considered.

SELECTING A MEDIATOR

There are different styles employed by mediators. The parties usually respond best when the mediator lists all of the "issues" of concern to the disputants, sets the agenda for consideration of the issues, and guides the resolution process with firmness and diplomacy. A good mediator sets a tone of civility, is a good listener, is capable of understanding the law and facts of the dispute, and has a personal stature that commands respect.

When disputing parties or their attorneys agree to mediate, the neutral facilitator they choose should have specific training and experience in mediation and some general knowledge of the subject matter of the dispute. Judges and attorneys are decision makers and advocates. Decision-making experience without specific mediation training and mediation experience is not enough for mediation. A good mediator is not a decision maker or an advocate. A good mediator is a facilitator and does not make decisions. If the dispute involves health care issues or disputes involving health care professionals, the mediator should have specific knowledge of that field. For example, Dispute Resolution Center of California has a panel of health care mediators comprised of both medical and legal professionals familiar with health care issues such as health care evaluation, medical partnership dissolutions, hospital sexual harassment claims, mergers and acquisitions, and malpractice claims.

A successful mediation is based on the fairness of the process and depends on the skills and experience of the neutral as a mediator. All parties must be able to trust the impartiality and knowledge of the mediator. The mediator's appearance of partiality, or lack of subject-matter knowledge can destroy the trust of the parties and make dispute resolution unlikely.

The judicial process and private arbitration are considered by most people to be an improvement over trial by battle, although today's lawsuits are sometimes referred to as "legal combat." Most lawsuits are settled (frequently just before, during, or after trial) after substantial, time consuming, and expensive litigation. Such settlements are sometimes called "settlement by exhaustion," reflecting the financial and emotional exhaustion of the litigants.

The parties to a dispute have the power to resolve it themselves and thus avoid the uncertainty of a decision by a judge or a jury. When a doctor makes a differential diagnosis, the most important thing is to think of the possibilities. The task of the mediator is to recognize the possibilities and assist the parties to a resolution which is acceptable to each party. The resolution is likely to be successful without the financial and emotional cost of litigation.

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DISCLAIMER: This site contains only general information and does not constitute legal advice. The question of whether laws, court decisions, or legal arguments apply to a specific case can be answered only after a formal consultation with an attorney.